Based on the stipulated facts, related exhibits, and briefs of the parties, the
Commission finds, concludes, and orders as follows:

FINDINGS OF FACT

The Commission finds the
following facts based upon the Stipulation of

Facts, omitting references to exhibits and making non-substantive
changes:

Jurisdictional and Procedural Facts

1. Under date of March 25, 1994, the Department
issued a sales tax
assessment to petitioner for tax years 1989-1992(2) in the amount of $634,075.33, including
tax, interest, and late filing fees. The assessment contained seven major items.

2. Under date of May 19, 1994, petitioner filed a
petition for redeter-mination objecting to only three of the seven items and to the rate of
interest charged on
the tax assessed.

3. Under date of November 14, 1994, the
Department denied petitioner's
petition for redetermination and asserted that $618,304.52, including tax and interest, was
due on the three remaining items.

4. On January 12, 1995, petitioner filed a timely
petition for review with
the Commission.

5. Subsequently, the Department reversed its
position on two of the
remaining items, leaving before the Commission only the item relating to St. Marys Older
Adult Services Lifeline Program ("Lifeline Program"), plus the proper interest rate, if any.

7. St. Marys held a Wisconsin sales tax seller's
permit from 1962 to 1990.
Because St. Marys filed sales tax returns for several years reporting no tax liability, by
letter dated January 31, 1990, the Department inactivated the seller's permit effective
December 31, 1988. St. Marys filed its final sales tax return with the Department in March
1990, reporting no tax due.

8. St. Marys offers its Lifeline Program in the
Madison, Wisconsin, area.
The services offered are provided by Lifeline Systems, Inc., 640 Memorial Drive,
Cambridge, Massachusetts ("LSI"). LSI is not affiliated with St. Marys through ownership
or management. It provides the same emergency response services through programs, like
the Lifeline Program, which are organized and operated by hospitals throughout the
United States and Canada.

9. The Lifeline Program offers a 24-hour emergency
response service
with security and support to subscribers so they may live independently in their own
homes.

10. A person interested in the Lifeline Program is
contacted by the full-time Lifeline Program coordinator, who, if the person wants to become
a Lifeline Program
subscriber, assists in completing a form captioned "St. Marys Lifeline Information Sheet."
A doctor's prescription is not needed to subscribe, and most health insurance policies and
Medicare/Medicaid do not pay for obtaining the equipment needed for this service.

11. The Lifeline Program coordinator also assists the
subscriber in
completing a "Lifeline Monitoring Services Care Plan Agreement" ("Lifeline Services
Agreement"). The agreement is signed by the subscriber. It specifies the obligations and
responsibilities of the subscriber, and the commitments, duties, and responsibilities of the
Lifeline Program generally and LSI specifically.

12. Upon receipt of the signed Lifeline Services
Agreement, St. Marys
arranges for the installation in the subscriber's home of equipment designed for 24-hour
emergency response services. The equipment installed is, and at all times remains, the
property of St. Marys. While the equipment is in the subscriber's home, St. Marys'
personnel maintain and service the equipment, which may need to be repaired or replaced
if damaged as the result of a lightening strike or other cause.

13. The equipment installed in a subscriber's home
consists of two units.
The first is a base unit, called a Communicator, which is connected to the subscriber's
existing telephone jack via a standard telephone cable. The subscriber's telephone is then
connected to the Communicator (the Lifeline Model 9000 substitutes for the subscriber's
telephone). The second unit is a Portable Help Button ("Help Button") that is worn by the
subscriber, either on a pendant around the neck or on a strap around the wrist. The
subscriber presses the Help Button when assistance is required. Pressing it sends a radio
signal that activates the Communicator, which automatically dials the telephone number
of the LSI Emergency Response Center ("LSI Center") in Cambridge, Massachusetts. The
radio signal range from the Help Button is on a par with garage door openers or low-power
cordless telephones, effectively traveling less than 100 feet on average. Radio signal
strength is also significantly reduced by a subscriber's facing away from the
Communicator unit when pressing the Help Button and by structural components of
dwellings.

14. The LSI Center is staffed with trained emergency
response personnel
on a 24-hour basis; other professionals (e.g., foreign language interpreters) are available
on an as-needed basis. LSI Center staff members have access to files on each subscriber,
which provides them with information including the subscriber's address, physical
limitations, allergies, and telephone numbers of nearby neighbors, family members, the
physician, and ambulance, police, and fire services.

15. When a subscriber activates a voice
model Communicator by pressing
the Help Button, the Communicator automatically dials the telephone number of the LSI
Center. The call is answered by an LSI Center staff member, who then communicates
directly with the subscriber via a powerful speakerphone built into the subscriber's
Communicator. Depending upon the circumstances, the staff member takes appropriate
action. If the subscriber is unable to speak, the staff member will either call nearby
neighbors or relatives, if available, or local emergency services.

16. In addition to the voice model Communicator, the
Lifeline Program
also offers an alarm model Communicator which, instead of
establishing voice contact with
LSI Center staff through a speakerphone, automatically dials the LSI Center and signals
the staff member on duty that the subscriber requires assistance. The staff member then
telephones the subscriber to establish voice contact. If voice contact is established, the staff
member takes appropriate action. If the subscriber does not answer the telephone, the staff
member will either call nearby neighbors or relatives, if available, or local emergency
services.

17. Both the voice model and alarm model
Communicators feature an
inactivity timer which allows the subscriber to establish a period of
time after which, if not
reset, the Communicator automatically dials the LSI Center. An LSI Center staff member
then telephones the subscriber. If voice contact with the subscriber is not made, the staff
member either notifies nearby neighbors or relatives, if available, or local emergency
services.

18. To use the Lifeline Program, a subscriber must
obtain telephone
services from independent local and long distance carriers, who bill the subscriber directly.
The cost to install and maintain local and long distance telephone services is a subscriber's
obligation.

19. St. Marys charges a subscriber an initiation fee of
$25 for its Lifeline
Program and remits $15 of that amount to LSI as a service initiation fee.

20. St. Marys charges a monthly Lifeline Program fee
of $35 to a
subscriber with a voice model Communicator and $25 to a subscriber with an alarm model
Communicator. Members of St. Marys' GoldenCare Program receive a $5 monthly
discount; most Lifeline Program subscribers are members of GoldenCare.

21. St. Marys remits a portion of the monthly Lifeline
Program fee to LSI.
From January 1, 1989 through May 31, 1990, LSI charged a monthly fee of $9 for a
subscriber with a voice model Communicator and $8 for a subscriber with an alarm model
Communicator. From June 1, 1990 through December 31, 1990, the monthly subscriber fee
was $9, regardless of a subscriber's model of Communicator. From January 1, 1991
through December 31, 1992, the monthly subscriber fee was $10, regardless of a
subscriber's model of Communicator.

22. The Lifeline Program is not regulated by the
Federal Communi-cations
Commission ("FCC") or the Wisconsin Public Service Commission. However, the Lifeline
Program's equipment is manufactured and maintained to comply with Part 15 of FCC
rules as to the radio frequency Help Button and Part 68 of FCC rules as to the
Communicators.

ISSUES

1. Are St. Marys' Lifeline emergency response
services provided in its
Lifeline Program "telephone services of whatever nature" for the period January 1, 1989
to September 30, 1989, under Wis. Stat. § 77.52(2)(a)4 (1987-88); "telecommunication
services of whatever nature" for the period October 1, 1989 to September 30, 1991, under
Wis. Stat. § 77.52(2)(a)5 (1989-90); and "telecommunications services" for the period
October 1, 1991 to December 31, 1992 under Wis. Stat. §§ 77.51(21m) and
77.52(2)(a)5 (1991-92)?

2. Is St. Marys' Lifeline Program subject to the
sales tax as the rental of
tangible personal property?

3. What is the proper interest rate to apply if any
sales tax is due?

APPLICABLE WISCONSIN STATUTES

1987-88 Statutes

77.52 Imposition of retail sales tax.

* * *

(2) For the privilege of selling, performing or
furnishing the services
described under par. (a) at retail in this state to consumers or users,
a tax is imposed upon all persons selling, performing or furnishing
the services at the rate of 5% of the gross receipts from the sale,
performance or furnishing of the services.

(a) The tax imposed herein applies to the following types of services:

* * *

4. The sale of telephone services of whatever nature including, in
addition to services connected with voice communication, any
services connected with the transmission of sound, vision, informa-tion, data or material
other than by voice communication, and
connection, move and change charges, except services paid for by
insertion of coins in a coin-operated telephone and except interstate
service, unless that interstate service originates from and is charged
to a telephone located in this state.

1989-90 Statutes

77.52 Imposition of sales tax.

* * *

(2) For the privilege of selling, performing or
furnishing the services
described under par. (a) at retail in this state to consumers or users,
a tax is imposed upon all persons selling, performing or furnishing
the services at the rate of 5% of the gross receipts from the sale,
performance or furnishing of the services.

(a) The tax imposed herein applies to the following types of services:

* * *

5. The sale of telecommunication services of whatever nature, not
including services paid for by the insertion of coins in a coin-operated
telephone but including any services connected with the transmission
of voice, sound, vision, information, data or material including
connection, move and change orders; whether trans-mitted by wire,
microwave, satellite or other means; including interstate services
originating in this state and charged to a subscriber or telephone
located in this state.

1991-92 Statutes

77.51 Definitions. Except where the context
requires otherwise, the
definitions given in this section govern the construction of terms in
this subchapter:

* * *

(21m) "Telecommunications services" means
sending messages and
information transmitted through the use of local, toll and wide-area
telephone service; channel services; telegraph services; tele-typewriter; computer exchange
services; cellular mobile tele-communications service; specialized mobile radio; stationary
two-way radio; paging service; or any other form of mobile and portable
one-way or two-way communications; or any other transmission of
messages or information by electronic or similar means between or
among points by wire, cable, fiber optics, laser, microwave, radio,
satellite or similar facilities. "Telecommuni-cations services" does not
include sending collect telecommunications that are received outside
of the state.

77.52 Imposition of retail sales tax.

* * *

(2) For the privilege of selling, performing or
furnishing the services
described under par. (a) at retail in this state to consumers or users,
a tax is imposed upon all persons selling, performing or furnishing
the services at the rate of 5% of the gross receipts from the sale,
performance or furnishing of the services.

(a) The tax imposed herein applies to the following types of services:

* * *

5. The sale of telecommunications services . . . that originate in this
state and are charged to a service address in this state, regardless of
the location where that charge is billed or paid.

CONCLUSIONS OF LAW

1. St. Marys' emergency response services provided
in its Lifeline
Program are not "telephone services of whatever nature", "telecommunication services of
whatever nature" or "telecommunications services" under the applicable statutes and time
periods and, thereby, not subject to the sales tax.

2. St. Marys' Lifeline Program is not subject to
sales tax as the rental of
tangible personal property.

3. Which interest rate to apply is moot since we
conclude that no sales
tax is due.

OPINION

In an uncommon occurrence in cases before the
Commission, four different
statutes apply to three separate time periods during the 4-year period under review, 1989
through 1992. These are as follows:

Time PeriodStatutesKey Statutory Language

1/1/89 to 9/30/89 § 77.52(2)(a)4
"telephone services of

(1987-88) whatever
nature"

10/1/89 to 9/30/91 § 77.52(2)(a)5
"telecommunication services

(1989-90) of whatever
nature"

10/1/91 to 12/31/92 § 77.51(21m)
"telecommunications services"

§ 77.52(2)(a)5

(1991-92)

Two general principles show the difference
in the applicability of the sales
tax to (1) sales and rentals of tangible personal property and (2) sales of services.
Generally, the sale and rental of all tangible personal property is subject to the sales tax
unless specifically exempted by statute. See Wis. Stat. § 77.52(1).
Section 71.54 of the
Wisconsin Statutes contains many such exemptions. However, for the Wisconsin sales tax
to apply to the sale of a service, the service must be clearly described by statute. Many
taxable services are identified in § 77.52(2)(a).

The principal issue which the parties have stipulated to is
whether the
services provided by the Lifeline Program are taxable because they are identified in
§
77.52(2)(a). The Department asserts that they are, contending that, while the Lifeline
Program's services may not be specifically described, they are included in the phrases
"telephone services of whatever nature" under § 77.52(2)(a)4 (1987-88),
"telecommunication services of whatever nature" under § 77.52(2)(a)5 (1989-90) or
"telecommunications services" under § 77.52(2)(a)5 (1991-92). We disagree.

Alternatively, the Department asserts that the fees paid
by customers of the
Lifeline Program are merely for rental of equipment, i.e., the Help Button and a
Communicator. We also disagree with this assertion.(3)

Rental of Personal Property

Where, as here, the facts encompass both a transfer of tangible
personal
property to a purchaser in conjunction with providing services, the fundamental question
is whether the transaction is the rental of property or the providing of services. The
"true
objective of the purchaser shall determine whether the transaction is a sale of
tangible
personal property or the performance of a service with the transfer of property being
merely incidental to the performance of the service." Wis. Adm. Code § 11.67(1)
(emphasis
supplied). The Commission has analyzed another factual situation to determine the
"dominant purpose" of a contract providing both tangible personal property
and a
service.(4) After determining the true objective
or the dominant purpose, the statutes must
be examined for imposition or exemption language pertaining to the overall transaction.

St. Marys' Lifeline Program provides subscribers with
two pieces of
equipment: a Help Button and a Communicator. We conclude that the equipment rental
is not the true objective or the dominant purpose of subscribers. Subscribers purchase a
service by which they may obtain emergency personal assistance. The equipment is
incidental to receiving the service.

The activities of the Lifeline Program are set in motion
in one of two ways.
First, pressing the Help Button triggers the Communicator to dial a telephone. Second, for
a person unable to operate the Help Button, the inactivity timer, a part of the
Communicator (see Finding of Fact 17), causes the Communicator to dial a
telephone.

The Communicator dials the telephone number of the LSI
Center. This sets
in motion a sequence of activities to assist the subscriber.

To take advantage of the Lifeline Program, subscribers
must separately
obtain telephone services from independent local and long distance carriers. These carriers
bill subscribers directly. No part of the Lifeline Program fees pay for telephone services.
Telephone services are clearly subject to the sales tax pursuant to the statutes cited above.
No part of the Lifeline Program fees are for telephone or telecommunications services.

The written agreement for the Lifeline Program
demonstrates that the true
objective and dominant purpose of subscribers is to obtain emergency personal assistance.
The agreement is for St. Marys to install and maintain specified equipment, to monitor
alarm signals from the equipment, and to respond to these signals. No rental fee for
equipment is provided in the agreement. The ownership, title, and exclusive rights to the
equipment remained with the service provider. St. Marys' providing the equipment is
incidental to providing the service.

In 1987, the Commission decided the Dow
Jones case, supra. In Dow Jones,
subscribers paid fees to a newswire service to receive, over telephone wires, news
stories
fed into the system in New York and received by teleprinters on subscribers' premises.
The ownership, title, and exclusive rights to the teleprinters remained in the news service
provider. The Commission concluded that the teleprinters were not rented to consumers;
that the teleprinters were furnished incidental to the service of providing news to
subscribers; that the service of providing news in this way was the dominant purpose of
this arrangement; and that this service was not subject to sales tax under § 77.52(2).

Dow is parallel to the case before us.
Here, the dominant purpose of
customers of the Lifeline Program is to receive emergency personal assistance. The
equipment provided was incidental to receiving that service.

Telephone/Telecommunications Services?

Statutes imposing taxes must do so in clear and express
language, with any
ambiguity and doubt resolved against imposing the tax. Kearney & Trecker
Corp. v. Dep't
of Revenue, 91 Wis. 2d 746, 753, 248 N.W. 2d 61 (1979). Nothing in the four
statutes at
issue clearly and expressly imposes the sales tax on the services provided by the Lifeline
Program. It appears that in the past the Department agreed. In a release in its
Wisconsin
Tax Bulletin, no. 34 (October 1983, p. 13)(5), the Department discussed the application of the
sales tax to types of burglar and fire alarm systems. It identified three alarm systems, two
of which are similar to the one now before the Commission, and asked about the
application of the sales tax to these two alarm systems as follows (emphasis supplied):

The "direct connect" alarm system is . . . a self-contained system
installed on a customer's premises, which is connected by telephone
wire to either a local police or fire station where the alarm sounds.
These "direct connect" systems . . . provide "protection service"
subsequent to the installation.

A "central station" alarm system is a system which is installed on a
customer's premises and [is] connected to a central monitoring station
maintained by the person providing the protection service. When
there is an unauthorized entry or fire, a signal is received at the
central station and the person providing the protection service notifies
the police or fire department and/or dispatches some of its own
armed guards or employes to the customer's premises.

The question is . . . whether the gross receipts from providing a
protection service are taxable.

After discussing the question, the Department concluded that "the gross
receipts received
from providing this protection service are not taxable" by the sales tax. Despite the use of
telephone lines in "direct connect" burglar and fire alarm systems, the Department did
not
conclude that the protection service is a telephone or telecommunications service.

The Lifeline Program is similar to the "direct connect"
burglar and fire alarm
systems. St. Marys' Help Button and Communicator, like the "(direct connect) alarm
system," is connected by telephone wire to a location with staff for immediate emergency
service. The central station alarm system is connected to a central monitoring station
maintained by a person providing the protection service. When the station receives an
alarm, the staff person notifies the police or fire department. This is comparable to the
Lifeline Program, which has a staff person at the LSI Center who sets in motion emergency
assistance to the subscriber. (It is not stated, however, whether a central monitoring station
receives an alarm over telephone lines.)

The Lifeline Program offers a protection service similar
to burglar and fire
alarm systems. We conclude that the gross receipts for this protection service are also not
subject to the sales tax.

In 1993, the Department's Sales Tax Committee(6) considered whether sales tax
applied to charges for a monitoring and response service which is triggered by subscribers
pushing a special alert key on a telephone or a large button on a pendant, which calls a
toll-free "800" emergency telephone number. A professionally trained service
representative answers the telephone, listens to customers through a high quality
speakerphone built into the system, and "summons appropriate help immediately no
matter what the need may be."(7) Although the
precise character of this service was not
clearly described, its equipment was stated as an "easy to use set which combines special
emergency response and monitoring functions."(8)

The Sales Tax Committee concluded that the charge for
the equipment and
monitoring service is subject to Wisconsin sales or use tax under § 77.52(2)(a)5.
Recognizing that this conflicts with the October 1983 Wisconsin Tax Bulletin
position on
burglar and fire alarm systems, the Sales Tax Committee declined revising the earlier
decision.

The Department now asserts that the Lifeline Program is
merely an enhanced
emergency response 911 service or type of paging service. We disagree. The 911 service
uses only a telephone and no other equipment. The Lifeline Program provides equipment
to help subscribers who cannot or do not call 911. In addition, the response under the
Lifeline Program is far more personalized than the response on a 911 system.

Both parties have analyzed legislative history to support
their positions. The
Department asserts that a special statute (§ 77.54(37)) was required to exempt charges
for
the 911 services from the sales tax. Therefore, it concludes, the Lifeline Program requires
a similar statute to exempt it from sales tax, and, since no such statute has been enacted,
the service is taxable. This ignores the fact that taxing the Lifeline Program,
rather than
exempting it from tax, requires an imposition statute, and no such statute exists.
See §
77.52(2).

Petitioner also wanders into the dark forest of the
legislative history of the
three statutes cited in the stipulated issue, relating to telephone services and
telecommunications services. We do not enter this tortuous trail because we do not
conclude that the Lifeline Program is a telephone or telecommunications service.
Therefore, there is no ambiguous statutory language to interpret by use of legislative
history.

Because we conclude that the Lifeline Program is not a
taxable service, and
petitioner's gross receipts from this program are not subject to the sales tax, we do not
address what rate of interest (on nonexistent taxes) is proper.

ORDER

The Department's action on petitioner's petition for
redetermination
regarding the Lifeline Program is reversed.

Dated at Madison, Wisconsin, this 22nd day of February, 2002.

WISCONSIN TAX APPEALS
COMMISSION

___________________________________________

Don M. Millis, Acting Chairperson

___________________________________________

Thomas M. Boykoff, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"

March 26, 2002 Department of Revenue non-acquiesced under § 73.01(4)(e)2

1 In the record, petitioner is identified both as "SSM Healthcare" and "SSM
Health Care". The latter form is used for
consistency.

2 The facts pertain to the period under review unless otherwise stated.

3 Petitioner objects to the Department's raising this issue because, it states,
this issue is different than the one which
the parties have stipulated as the sole issue before the Commission. That issue is whether
the Lifeline Program is
subject to sales tax as a telephone or telecommunication service. We agree. The
Department should have confined
its arguments to the stipulated issue. However, our view is that if this second issue were
also stipulated, the Department
would not prevail. We discuss the reasons in this opinion, should the Department or a
reviewing court want the
Commission's opinion on it.